Christopher Mwakabura vs The Republic (High Court Criminal Appeal No. 138 of 1989) [1990] TZHC 38 (19 December 1990)

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• 33 .... J-\r·l:' .tJ-LL,-.Tl!i JU .:tL,.,__,ICT_IuN HIGH (X,U!,T. CidHih,,L 1.F.1: ,>.:,J.L N0o 13u/u9 uidGINi-.L C.t<IHll,iL Ct.0;.i: l'llu. G99 uF 1980 v:f TH.ii. lJfoT.KlCT CvUi<T vF IL.i-1.Li-i. i.JI;jT1<lG 1 r i-1.T KlVUKONI CH1do'rlif'H.c..1:< t 1 11vnKDUDl1. ••••••••••••••• Al' P:GLLANT (Griginal Accused) versus .. TH_t:; .i.lli.l:'UDLIC •• , ••••••• °" u ......... . kc;Sl-'ONDEN-T (0riginal rosecutor) JUl.iGivl.C.:NT • '.Chis is an appeal by Ch1irtopher Hwakabura against the judgment of the LJistrict Court Ilala in which the appellant was convicted of th_e offence of robbery with violence and sentenced ·to a term of imprisonment for }2 years •d to suffer 6 strokes of caneu There were 2 accused persons at the trial but the other accused escaped fnd has yet to be a.rreste :i. 'l'he appellant is I • disaatisfied with the conviction and sentnce in this case, hence this apealo '.l'he evidence at the tri,;41 established th&t the appellant was known to the compluinant G.nd thl.t on lJ/5/vL at midnight, the complainunt Joseph !vw.yala was drivi:t!g u motor vehicle with registration nu1;,ber b'l'G 9392 Lc.nd LovQr, when he got to Mbag£:.:.la Kizuiani he saw rnuny people en tho ro1.:..d among whom were the El;Jpellant und onG Geor 5e who wE:ts th;; 2nd accused. The lo.tter ask<::d for u li!;t to takhem wl10re th0 complainant and the two ace.used lived. 'l'he c omplaina.nt t>'~vc tht=m a lift and when they got to the hor.1e of the appellant, tha appellant offered ,...-· to supply the complainnt, who had earlir wnted to buy cigrettes 1 with the comh;Odity from his shop. 1 'he complain&nt gave him money to buy the cigarettes, and the appellant went across the roltd t.nd disappe;;.red soon to reappec;:r with a packet of cigarettee • .. i-1.s the C()mpluinc.1.nt stretched his ho.nd to re:ceive the cigcLretes, the apell&nt grabted the complinnt•~ neck and the second aecured. tried to open the rear side duor but faild &t first. He Ll&nged, however, to optn it nd got into.th vthicl8. The • second accu:..,ed ht:..d si. pi&tol. ·l'he two r,11.:ni.,.~;0d to rob the complain&nt -- .. , . .

-34 - of he vehil~ und drove way leaving him on the ground. The compluint:..nt cried out the,. t ht::· hc.c<l b0 .,n robb0d by thv accused. He reported to the i'olice who a.ctul fd;t -shut. night arid tl10y mnhged to gt the vehicle. Letective Corporul Madenge got the report. from th0 complinnt who raentionud his robLcrs. Police weru ordered tlo keep on sob.rchins for the vehicle· and to visit the homos of the accused persons. The appoliant was not found in his room although his brother in law epected him to be there~ when the pellant was eventually arrested he was intcrr0gctted. 11 e denied knowing the com.pluinant or to have robued the vehicle or to hve entared the vehicle of the complainant, al,holi.gh he admitl.,ed to have be;:,n in a danoe at Mbi;..gula Kizuic,ni o·n . 19th Muy. 1900. ':r'he othe:r witness W£<s velestine Gasper who was living at Ivibagala :t".iakhem c:..nd who was s<::lling some "9dibles with the appellant. On ' the u.;;.,.y of th:) theft of the motor vehicle, this witness (Pw.,3) · .... J was Mslbp nd ut rouna,midnight 1 he h~~rd knocks at th0 door of his room. ihd appellant mentioned his nama anJ said th2t he wanted cigarettes. PvJ.) saw the 20/::::; which the apJ<::llant passed und0r the door und in turn h psseu. thb cigurettes un~~r the door. iif.3 knew the voice of thu appellant v .. ry well. P.4 asukile Mwngok& an uncle of the apicllant said that on 19/5/vG &t 4.30 .mo the appel:l&nt c&m0 t:.. his home and slept· there. '.l.'h(: ap::;:ellant was arres'!leu. whon th.:: l:ouse of PW.4 wo.s ambushed b.:y the Police. In his defence, the appellant dcni8d con•,dtting any robbery. He said that 9.1;1 li.i/5/Lb hE:e went to tcwrab uusic with a girl anll after thE: music, he left with the girl :for c. guest house. He did not go to his home because he livotl with hit brother in law. H• ended up £,t the home of his friend one .t-.i..,,r.1h;i uaidi Matula. · Next day, he went to town an<l Wi.>.S back at his uncle's place (PvJi:) whom he detitletl to visit. lie rested ther~ until 8.oo p.J. ', wanted to leave, his uncle would not allo1;1 him. at 10 p.r.1. he wa~ arrestd by the Police. / . un this evitlence the leurned trial M&gistratb convict0d the / ap~~llant aftvr accupting the prosecution vience anJ rejecting the tief ence • .iJr. L;;.mwui, learned counsl fer thtJ a;:,pollant, fiL:..-d gr0uncls of appeal on behalf of the ap&llant. ;.t th hc.crinb of the apc&l, he abundoned the 5th gr0untl reg&rJinG severity of scntenca. ii0 argued that the iC.entity of the rc".J ..... rs w~.s nc,t provet1 1),.y(,11,.7.

ij -· l? .. •· 8 submittuJ tht although PW.l mitht have rec ognisetl the ap.i.,ellant when he 6 £.Ve him i.:J. lift,. there W<-,S no evi<lo::nce to show thL,t he recognized the people wmo came lefter the appllant had left to gut cigarett ,s as th&re as no &viclende as to the adeuacy of th8 light at the SC8ne of th~ obbery. He submit.ed tht the complinnt (P~.l) cvultl hove seen cth0r people ce;ming tuwur<ls him c:::.ncl not the appellant ancJ. his colleague. 11 e went on to argue th&t in the absnc of lar eiuence 0n the c,de'iuacy vf the li,:J1t, thtar8 was a possibility that Pvl.l wro;gry thuught thkt th0se who rubbd him were the &ppellant antl"his colle- ague. In furth;.;r sul>rnission, .ur. 1., .... mw<-.i s"'iLc that it defoGi.ts losic· fer the uppellant to first 0 gtat out of the lanurc..,ver in orde:;- to rob PW.l bct:1.use if ti1.ey int0ncl1::u to rob they cvulc.i hc:lV<:: clune !3L: when they· ,, were ·1n the lanJrovr. ue ls0 sil that it dfcats.losic tht the appellant chast..d h-1.1 when .i:'W.1 1.;0t out uf th•:: lancl r.ov0r bec"'usQ thert: v1oul~ be nci need fer that s.incc they hc.1.d got the lundruv_0r. with ugurd to the uviuence of 1:-'W.3, Dr. Lc:.tmwai _s2.id th;.i.t PW.3 nev8r snw tho o.ppel:umt a.ccurtling o his• cvi..':.tnce. uo siu that a voice is not proof of identity even when thti onti hellring it knows the spJak<:r,. with regar<l to the circumstntial evituLCe cuncernine absence· of the ap;allant fru~ his usual hu0, Lr. L-mwai submitted thQt it ditl not prove anythingo In reply, Mr. uimbakalia, lea.rnecl Bt(;',t.<i 11.ttorney said that he was supportine tht oonvicticn,, He saiu. th,.t the evidence of PW .l was SUPl,'.;Orte<l by that vf 1?1 •• 3. ,·iith re:grJ to the alibi uf the avpellant, hr. imbk&lia said tht the C•Jurt should not give any weiht t0 it s n0 nutice· of it ws iven to the Prosqcution s ro4uirotl Ly th0 law In a further replJ Vr. Lamwai saiJ thut there was no evicccce thc;1.t the appellant and his colleague went to g1::t a pistul bec"'use the eviCtonce -:...vc.ilu.ble is th.t they went to get cig£.Lrettes. J~s t0 th0 aJ:ibi i.,r • .1.,mwui submitte<l th.:..t the triu.l t,,1ai_;istr&te exercised his tliscretion wrongly • . It wuulu. appear thc;1.t thtirc is not muci1 <.lisyute abuut tho vidence th&t the appellunt u.nd the 2nd accuse cl wa:.·e knc,wn by P\J .1 who r;uve them a lift on. the night in question. i,lthough tho arp0llant cluim0d thclt h neVJer met the compl,1in£,nt (HJ.1) 1 I am s~~tisficd like th trial cuurt that ht: actuo.lly 1i1et hini und was ;Sivon c.. lift. What ilJ pcurs to b0 4ucstionable is wheth0r th0 &ppellant went to get

complainant of his vehicle. I have heard the areur.1ents on both 'sios ubuut this point. I &m of the cpinion that the possibility. of other people different frum the appellunt und his companion robbiiig the compluine.nt is not tht;re. '.l'his is because the sce1.e of the robbery wo.s just next t0 the sh opt ac'--·ortling tc, the evidence, and the appellant anu his colleague di not t&ko any tim8 to get back to tht:: vehicle aftor going t0 get cigc..rettes. l:.t.;ce,n(lly, the appellant is said to hu.ve tolu the othi:;r accuse.:. :,George) to go around the lanu rov~;r. This wc,ulu no doubt r.10:..ke thu c::.ppellant speak out to Geor 0 c and be h.:::ard by J:·,1.1. 'l'hirclly, u.ccor,C::.in~ tc., the eviuence, there was a struggle between the appellant anc.: Hv .1, as the appellant held on PvJ.l. .ViJ.l c.:.escribec.1 his .ordeal of how he saw George with a pistol, how the uppellant ord.eretl him to leave the ste,.rin~ wheel nncl huw he w,:;,s followed by Geor(;e. J.'hen Georce wanted t0 L,et HJ.l who rnc:..na.;ed to escnpe. I arn s&tisfied like the trial court thu.t there w;;;.s no possibility of· mistc..ken identity there. Indeed even the iuentification of the appellant by PW.3 by means of his voice cannot be faulted as there is nothing in the ivi<lence Act which declares such evidence to be unreliable. A person can properly be identified thruugh his voice. The definition uf "eviclence 1 '. in the :J!;vidence 1,ct, 1967 is as follows:- "eviclence" denotes the means by which an alJegea matter of fact,· tl.e truth of which is submitted to :i.nvestigation, is proved; and without prejudice to the preceding generality, incluJ.es statements and admissions by accused persons • 11 Then we have section 62 (1) which states:- hura1 evidence must in all cases _whatever, be direct; that is to say - (a)••••·•·••·•••••••••••••;·•·•••••••~ (b) if it refers t0 a fact which could be heorJ, it must b~ the eviLlence of a witness who says he heard it. PW.3 heard the voice of the appllant which he recognized us that of the appellant because he was familiar with i, His evitlence is therefore as valid as any other~ The eviJence of f~.3 tloes corroborate that of PW.l to the extent that the ap:J_ellant went to get cigarettes. 'l'he theory of Lir. Lamwai that the complain~nt c oulc'.. have been attacked and robued by other people ancl not the appellant and the

-37 - .u . ·, co-accused cannot h0lcl water. If what .ur. amwai ar 6 ues happened is what actual:ty happened, then it would be quite an interesting coinciJ.ence, because the:: robuers wvulC. have to be lurking at the scene, listening to the convi::rsation betwe0n the appellant an'-1 the complainant. It is in eviuence that the robbery was perpet::ate<l after an attempt to bive thE: complainc:..nt cigarettes which led to the complainant.to stretch his hand t0 receive them. Dut then where woulll the a].)1Jeliant be anL'. why is that the ah,ellant an,:: his companion were not there when peoJle assembled after the complainunt had cried out that he had Len roblctl? hs I saitl earlier, thfu 10 theory cannot hol6 water. Incie0d it is a thec-r;t: without any basis as the appellant nevt'-r put furwar<l the proposition that they actually left after gettng out of the complaincnt'i case. This is there- fore mere speculation.without much basis. Furthermore, even the failure of the appellant to go to sleep at his usual place adds up to the case for the prosecution becuse firstly the reasons for this failure are disproved by the prosecution evitlence anJ are in my opinion a pack of lies; anJ secondly this failure to be at home tends to show that something was wrong and so the appellant w0uld not go to where he can be easily found. 20 Lastly the logic in the ap:i;,ellant anu. his c,)lleacue' s action in not robbing the complainant while thy were in the vehicle is not hard to f:ind. i.s sug1:,ested by the learned .State Attorney, it coulu be a gUlJ-., Anoth1.;r reason woulJ. bo t0 takf. the complainant by surprise. I £-m sure the appellant knows better why he had to leave the vehicle first just tv cume back l&ter on an:;_ p...unce on the c vmplainan t,, It follows from the auove that the apJJeal ai;&inst d onviction must faih Encl it is uismissed., As for thB sent::-nce, the appellant was sent,mced to 32 years 30 imprisonment,, I am unable to see where the lec..rneJ Magistrate got the extra 2 years in view of the fact that the istrict Court has- got power to impose a sentence of only 30 yoars for such offence with or without corporal punishment I therefore fin~ the s:enterice of 32 years to be illegal as it c0nt.ravenes section 5 (bb) of the Ninirr:ur.1 b ~ ntences ,-,ct as amended by ,'..ct l'rn.10 of 19u9 in that the minimum term vf imprisonment for armP-d robbery is 30 · T ,maximum . . . . . yea.rs. he i.. · · is of course life 1.m:i:irisonr::e::1t, but then section 170 of the Criminal Proee·dure ;1ct cloes not giv 0 e the District Court power to pass a sentence above 30 years, I will reduce the sentence ··i·. •I I ) l / •,i

·•·- ; - ... " to 30 years imprisonment. i,part fr0m the aLGVe currectioni thi\ apeal fails and is dismissed in its entirety. LJelivereu in court. 1,ppellant Presento Mrs • .:iilaa f1)r 1-<epublic. 1-1.T D.i-\h bS SALl-1.AM 19th .1Jember,1 1990. 19/12/1990 .( . • : ;;.:,_f, ,;,·• ~-, ! ; l